Computer Professionals for Social Responsibility (CPSR) today
filed its brief in federal district court in Washington, DC,
challenging the Secret Service's withholding of information
relating to the break-up of a meeting of individuals affiliated
with 2600 Magazine last fall. The brief is re-printed below. All
footnotes and certain citations have been omitted.

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND IN
SUPPORT OF PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

Plaintiff initiated this action on February 4, 1993,
challenging defendant Secret Service's failure to release certain
agency records requested under the Freedom of Information Act
("FOIA"), 5 U.S.C. Sec. 552. Specifically, plaintiff seeks
disclosure of Secret Service records concerning "the breakup of a
meeting of individuals affiliated with '2600 Magazine' at the
Pentagon City Mall in Arlington, Virginia on November 6, 1992."
The Secret Service filed its motion for summary judgment on April
19, 1993. Plaintiff opposes the agency's motion and cross-moves
for summary judgment.

Background

On November 6, 1992, a group of young people gathered in the
food court at Pentagon City Mall in Arlington, Virginia, to
socialize and discuss their common hobby -- computer technology.
Most of the attendees were readers of "2600 Magazine," a quarterly
journal devoted to computer and telecommunications issues. The
gathering was a regular, monthly event promoted by the magazine.
See "Hackers Allege Harassment at Mall," Washington Post, November
12, 1992.

Shortly after the group had gathered, "they were surrounded
by a few mall security guards and at least one agent from the
Secret Service." Officers of the Arlington County Police
were also present. The security guards demanded that the group
members produce identification and compiled a list of names. The
personal belongings of several attendees were confiscated and the
group was evicted from the mall.

Several days later, plaintiff submitted a FOIA request to the
Secret Service seeking agency records concerning the incident.
The agency produced several newspaper articles describing the
incident, but withheld two records which, according to the agency,
"were provided to the Secret Service by a confidential source, and
each consists solely of information identifying individuals."
Defendant asserts that these two documents -- apparently lists of
names compiled by the mall security guards -- are exempt from
disclosure under FOIA Exemptions 7(A), 7(C) and 7(D). Plaintiff
disputes the applicability of these exemptions to the withheld
material.

Argument

I. The Withheld Information was not Compiled
for a Valid Law Enforcement Purpose

Under the facts of this case, defendant has failed to meet
its burden of establishing the threshold requirement of Exemption
7 -- that the information was compiled for valid law enforcement
purposes. Without elaboration, defendant merely asserts that
"[t]he two records being withheld ... are located in investigative
files maintained by the Secret Service that pertain to and are
compiled in connection with a criminal investigation being
conducted pursuant to the Secret Service's statutory authority to
investigate allegations of fraud." Def. Mem. at 3. This
assertion falls far short of the showing an agency must make in
order to invoke the protection of Exemption 7.

First, the agency's investigatory activities that give
rise to the documents sought must be related to the
enforcement of federal laws or to the maintenance of
national security. To satisfy this requirement of a
"nexus," the agency should be able to identify a
particular individual or a particular incident as the
object of its investigation and the connection between
that individual or incident and a possible security risk
or violation of federal law. The possible violation or
security risk is necessary to establish that the agency
acted within its principal function of law enforcement,
rather than merely engaging in a general monitoring of
private individuals' activities. ...

Second, the nexus between the investigation and one
of the agency's law enforcement duties must be based on
information sufficient to support at least "a colorable
claim" of its rationality. ... Of course, the agency's
basis for the claimed connection between the object of
the investigation and the asserted law enforcement duty
cannot be pretextual or wholly unbelievable.

673 .2d at 420-421 (emphasis, citations and footnote omitted).
Since the passage of the 1986 FOIA amendments, the court of
appeals has slightly restated the Pratt test so that the agency
must demonstrate a nexus "between [its] activity" (rather than its
investigation) "and its law enforcement duties." Keys v.
Department of Justice, 830 F.2d 337, 340 (D.C. Cir. 1987).

As the court of appeals noted, the reason for requiring the
showing of a "nexus" is to ensure that the agency was not "merely
engaging in a general monitoring of private individuals'
activities." Other courts have also recognized that "[i]f an
agency 'was merely monitoring the subject for purposes unrelated
to enforcement of federal law,' a threshold showing has not been
made." Rosenfeld v. Department of Justice, 761 F. Supp. 1440,
1444 (N.D. Cal. 1991). See also King v. Department of Justice, 830
F. 2d 210, 230 (D.C. Cir. 1987) (court not required "to sanction
agency claims that are pretextual or otherwise strain credulity");
Shaw v. Federal Bureau of Investigation, 749 F.2d 58, 63 (D.C.
Cir. 1984) ("mere existence of a plausible criminal investigatory
reason to investigate would not protect the files of an inquiry
explicitly conducted ... for purposes of harassment").

In this case, the agency has not even attempted to make the
requisite showing. It has not "identif[ied] a particular
individual or a particular incident as the object of its
investigation and the connection between that individual or
incident and a possible ... violation of federal law," as Pratt
requires. Rather, the circumstances strongly suggest that the
Secret Service was "merely engaging in a general monitoring of
private individuals' activities" (Pratt), or conducting an inquiry
"for purposes of harassment" (Shaw).

If, as the agency's representations suggest, the Secret
Service obtained a listing of individuals lawfully assembled at a
shopping mall in order to identify computer "hackers," without
benefit of probable cause or even articulable facts justifying
such an "investigation," Exemption 7 cannot protect the collected
information from disclosure. Indeed, as the Second Circuit has
noted, "unauthorized or illegal investigative tactics may not be
shielded from the public by use of FOIA exemptions." Kuzma v.
Internal Revenue Service, 775 F.2d 66, 69 (2d Cir. 1985), citing
Weissman v. Central Intelligence Agency, 565 F.2d 692, 696 (D.C.
Cir. 1977) (other citation omitted). The agency has offered no
evidence that would rebut the inference that it is improperly
collecting the names of individuals engaged in constitutionally
protected activity.

The Secret Service has not met its burden of establishing the
"law enforcement purposes" threshold. Nor has it demonstrated
that any of the requisite harms would flow from disclosure, so as
to meet the specific provisions of Exemptions 7(A), 7(C) or 7(D).

II. Disclosure Would not Interfere
with a Pending Law Enforcement Proceeding

In support of its 7(A) claim, defendant again asserts,
without elaboration, that the disputed records were obtained "in
the course of a criminal investigation that is being conducted
pursuant to the Secret Service's authority to investigate access
device and computer fraud." Defendant further asserts that
disclosure of the information "could reasonably be expected to
interfere" with that investigation. As plaintiff has shown, the
existence of a qualifying "investigation" has not been
established. Nor, as we discuss below, could the disclosure of
the withheld information be reasonably expected to interfere with
defendant's vague inquiry.

Given the unique nature of FOIA litigation, plaintiff (and
the court, absent ex parte submissions) must draw logical
conclusions based upon defendant's representations. Here,
defendant represents that 1) the records relate to the incident at
Pentagon City Mall; 2) the records were obtained from a
"confidential" source; and 3) the records consist "solely of
information identifying individuals." Given that a list of names
was compiled by mall security guards and that a record consisting
"solely of information identifying individuals" is -- by
definition -- a list of names, plaintiff and the court logically
can assume that the compilation of names is being withheld.

The individuals who were required to identify themselves, and
whose names were subsequently recorded, obviously know that they
were present at the mall and that their names were taken. Under
these circumstances, it is patently absurd for the agency to
assert that

[t]he premature release of the identities of the
individual(s) at issue could easily result in
interference to the Secret Service's investigation by
alerting these individual(s) that they are under
investigation and thus allowing the individual(s) to
alter their behavior and/or evidence.

In Campbell v. Department of Health and Human Services, 682
F.2d 256, 259 (D.C. Cir. 1982), the D.C. Circuit reached the
obvious conclusion that Exemption 7(A) does not apply to
information that was provided by the subject of an investigation
-- it applies only to information "not in the possession of known
or potential defendants." See also Grasso v. Internal Revenue
Service, 785 F.2d 70, 77 (3d Cir. 1986) (where plaintiff sought
disclosure of his own statement to agency, "[t]he concerns to
which Exemption 7(A) is addressed are patently inapplicable").
Under the facts of this case, defendant's meager assertion of
"interference" defies logic and cannot be sustained.

III. The Privacy Protection of Exemption
7(C) is Inapplicable in this Case

Defendant next seeks to shield the information from
disclosure on the ground that it is seeking to protect the privacy
of the individuals named in the records. Applying the balancing
test of Exemption 7(C), the agency asserts that there is a
substantial privacy interest involved and "no public benefit in
the release of the names."

As for privacy interests, defendant claims that the
disclosure of an individual's name in a "law enforcement file ...
carries stigmatizing connotations." As noted, there is
substantial question as to whether the withheld material qualifies
as a "law enforcement" record. Indeed, the individuals themselves
believe that their names were recorded for purposes of harassment,
not law enforcement, and they cooperated with the news media to
expose what they believe to be improper conduct on the part of the
Secret Service.

As is set forth in the attached affidavit of counsel, a
number of the young people who were detained at the mall have
sought plaintiff's assistance in securing the release of relevant
Secret Service records. By letter dated November 20, 1992,
plaintiff submitted a FOIA request to the agency seeking
information concerning eight individuals, and provided privacy
releases executed by those individuals. The agency claimed that
it possessed no information relating to those individuals.
Plaintiff believes it is likely that some, if not all, of those
individuals are identified in the material defendant is
withholding. Given that plaintiff provided privacy releases to
the agency, the invocation of Exemption 7(C) to withhold those
names is indefensible.

The newspaper articles attached to defendant's motion belie
the claim that there is no public interest in the disclosure of
the requested information. The front page of the Washington Post
reported the allegation that the Secret Service orchestrated the
incident at Pentagon City Mall in order to monitor and harass the
young people who gathered there. The individuals themselves have
attempted to publicize the incident and gain the release of
relevant agency records. The balance between privacy interests
and public interest clearly weighs in favor of disclosure.

IV. The "Confidential Source" Protection of
Exemption 7(D) is not Available in this Case

Finally, defendants invoke Exemption 7(D), emphasizing that
the statutory definition of "confidential source" includes "any
private institution." Again, the circumstances of this case
render the exemption claim absurd -- the shopping mall was clearly
the source of the information maintained by the agency and it has
not attempted to conceal its cooperation with the Secret Service.

Shortly after the incident, the mall's security director,
Allan Johnson, was interviewed by Communications Daily. According
to an article that appeared in that publication, Johnson
acknowledged that the mall's security staff was working under the
direction of the Secret Service. "The Secret Service ...
ramrodded this whole thing," according to Johnson. "Secret
Service Undercover Hacker Investigation Goes Awry," Communications
Daily, November 10, 1992, at 2. This admission belies defendants'
suggestion that "[s]ources who provide ... information during the
course of a criminal investigation do so under the assumption that
their identities and cooperation will remain confidential ...."

As defendants concede, promises of confidentiality will be
implied, but only "in the absence of evidence to the contrary."
In this case, the evidence suggests that the source of the
information has sought to deflect responsibility for the incident
by asserting that it was, indeed, acting at the request of the
Secret Service. The agency appears to be more concerned with
protecting itself than with protecting the identity of a source
that is in no way "confidential." Exemption 7(D) can not be used
for that purpose.

CONCLUSION

Defendants' motion for summary judgment should be denied;
plaintiff's cross-motion for summary judgment should be granted.